Articles Posted in Negligence

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Anyone with experience in the court system knows that seeing a lawsuit through to completion takes time. While the wheels of justice may turn slowly, the plaintiff in certain cases may require urgent action to put a stop to the defendant’s behavior that gave rise to the litigation in the first place. In those situations, a plaintiff can turn to the courts for help in the form of a petition for an injunction.

Under Louisiana law, an “injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result” The Louisiana Supreme Court has explained that “injunctive relief” is designed “to prevent the occurrence of future acts that may result in irreparable injury, loss or damage to the applicant.” The issuance of a permanent injunction requires the court to assess the merits of the request, which may itself require time; the court can issue a preliminary injunction–which only requires a prima facie (on its face) showing that the plaintiff is entitled to relief–to maintain the status quo while the permanent injunction is pending. Key to the success of a plaintiff’s petition is that the court’s compulsion or prohibition of some conduct is required to stave off harm. An injunction cannot be issued for monetary damages. In addition, there is an exception to the requirement that the plaintiff show irreparable harm. The courts disregard this element when the conduct at issue “constitutes a direct violation of a prohibitory law or a constitutional right.” In other words, if the defendant’s conduct is illegal, harm is implied.

The Court of Appeal for the Third Circuit provided a useful analysis of the requirements for an injunction in the recent case of Desselle v. Acadian Ambulance Service, Inc.. The trial court granted of a preliminary injunction against Acadian to prevent it from collecting any amount in excess of the reimbursement rate it had negotiated with Keisha Desselle’s health insurance provider. Desselle disputed that any amount was due to Acadian, and was in litigation with her health insurance company over the matter. The court reversed the issuance of the injunction, stating that the case “[ran] afoul of [Louisiana law] insofar as [Desselle] did not demonstrate that “irreparable injury, loss, or damage may otherwise result” to her. First, Desselle has “already been subjected to the complained-of billing procedure.” Further, “any alleged injury, loss, or damage is monetary is nature. It is unclear how the anticipated injury, loss, or damage is irreparable insofar as “Desselle’s] suit is one for monetary damages.”

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Late in the afternoon of April 15, 2001, Geraldine Fruge and her eight-year-old granddaughter, Hannah Lejeune, were involved in an auto accident on US Highway 171 in Beauregard Parish. Fruge, who was driving southbound, lost control of her Pontiac and veered into oncoming traffic. Tragically, both she and Lejeune were killed when their car struck a Ford pickup truck heading northbound. It had been raining on and off throughout the day and Highway 171 was wet at the time of the crash. The victims’ family brought a wrongful death action against Louisiana’s Department of Transportation and Development (DOTD). The plaintiffs alleged that due to the highway’s construction, water was allowed to collect and pond on the roadway. They alleged that this condition amounted to a defect that caused Fruge’s car to hydroplane. After jury returned a verdict in favor of DOTD, the plaintiffs appealed.

The primary duty of Louisiana’s DOTD is to maintain the public roadways in a condition that is reasonably safe and which does not present an unreasonable risk of harm to motorists who exercise ordinary care. As discussed in this prior blog post, a plaintiff must prove the following elements in a tort action against DOTD arising from accident on the roadway: (1) that the condition that caused the damage was in DOTD’s control; (2) that the condition amounted to a defect that presented an unreasonable risk of harm; (3) that the DOTD was aware or should have been aware that the defect existed; and (4) that the defect was the cause of the plaintiff’s injuries. Upon review, the Court of Appeal for the Third Circuit began “with the second element: whether Highway 171 contained a condition that created an unreasonable risk of harm.”

The court reviewed the record and examined the testimony presented by eyewitnesses, experts, and accident investigators, much of which centered around the ridges or ruts in the travel lane that on the day of the accident held water on the road. The court noted that “it is clear that the jury could not have come to any conclusion other than the fact that the travel ruts on both lanes of Highway 171 were holding some water at the time of the accident. Thus, the pivotal question is whether this retention of water was a defect in the highway that created an unreasonable risk of harm.” After an exhaustive review of matters such as rut depth, roadway gradient, tire tread depth, and the physics of hydroplaning, the jury found that the condition of the road did not present an unreasonable risk of harm. “The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Accordingly, the court held that “the evidence in the record provides a reasonable factual basis for the jury to have concluded that Highway 171 was not defective,” and affirmed the trial court’s judgment.

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Four workers who were employed by the Prairieville-based Proserve Hydro Co. were working on at a Honeywell International facility when a hose carrying chlorine gas ruptured, causing them injury. The workers sued Triplex, Inc., the company that had sold the hose to Honeywell, under the theory that it was liable for their injuries as the manufacturer of the hose. The U.S. District Court for the Middle District of Louisiana, applying the Louisiana Products Liability Act (LPLA), granted summary judgment in favor of Triplex, and the workers appealed.

In its review, the U.S. Court of Appeals for the Fifth Circuit noted that The Louisiana Supreme Court has identified four elements that a plaintiff must establish in a products liability suit under the LPLA. It focused particualrly on the requirement that the defendant must be the “manufacturer” of the product according to the state’s definition. The lower court’s summary judgment was based on Triplex’s position that it was not a manufacturer of the hose within the meaning of the LPLA. The hose in question was a “Resistoflex Chlorine Hose Part # HB30HB30HB-1560.” It consisted of a Teflon inner-core surrounded by a braided material jacket. The core and jacket were assembled by the Crane Resistoflex Company and shipped in bulk to Triplex for distribution. Upon receipt of an order from Honeywell, Triplex cut the hose to the requested length, installed Resistoflex-approved fittings to either end, and pressure-tested the hose. Triplex recorded the specifications of this work on an assembly test certificate which listed “Resistoflex” as the manufacturer of the hose.

The court looked to the LPLA to determine whether, based on its cutting the Resistoflex hose and installing the end fittings, Triplex fit the definition of “manufacturer.” It noted that the workers’ expert conceded that the hose rupture occured a significant distance away from any end fitting and did not appear to result from the modifications Triplex performed. It also affirmed the point that “the simple act of testing a product after modifications,” as Triplex did, “does not transform a seller into a statutory ‘manufacturer.’” The court was not persuaded that Triplex exercised any “control over… a characteristic of the design, construction or quality of the product,” given that Honeywell specified the exact Resistoflex part number and the end fittings it required. Accordingly, the court concluded that Triplex was not a manufacturer under the state law definition, and therefore could not be found liable for the workers’ injuries under the LPLA.

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In 1960, Hunt Petroleum Corporation (“Hunt”) entered into a surfaces lease with the Reynolds family. In 1997, Kinder Gas Processing Corporation (“Kinder Gas”), one of Hunt’s successors in interest, notified the Reynolds of an environmental study “that showed a few things [Kinder Gas] wanted to clean up,” and that it was “in the process of cleaning them up.” Over several years, Kinder Gas discussed with the Reynolds the possibility of buying part of the property and cancelling the entire lease. On January 14, 2008, the Reynolds (through a real estate appraiser) offered to sell the entire property to Kinder Gas. The offer referred to environmental problems on the property caused by Kinder Gas or its predecessors.

In 2010, Kinder Gas brought suit for a declaratory judgment against the Reynolds to avoid liability for damage to the Reynolds’ property. In turn, the Reynolds sought damages against Kinder Gas and other successors (“the Gas Companies”) in connection with toxic wastes that were spilled or disposed on the property. The Reynolds relied on theories of strict liability, nuisance, continuing trespass, and breach of contract. They asserted that the lease was cancelled as a result of the Gas Companies’ breach of contract. The Gas Companies countered that the tort claims had prescribed, and that the breach of contract claim was premature.

The Kinder Gas v. Reynolds trial court agreed with the Gas Companies, finding that the Reynolds’ had constructive knowledge of possible contamination prior to the real estate agent’s January 14, 2008 offer. Citing Marin v. Exxon Mobil Corp. and Hogg v. Chevron USA, the court held that the Reynolds’ failure to file their tort claims within a year from this date resulted in prescription. The court also found that the lease was still in effect. Relying on Dore Energy Company v. Carter-Langham, Inc., the court held that the Reynolds’ contract claim for restoration of land on which operations were ongoing was premature.

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In Louisiana v. Louisiana Land and Exploration, the State of Louisiana and the Vermilion Parish School Board brought suit against Union Oil Company of California (“Unocal”) and other oil companies for remediation of polluted state property in Vermilion Parish. Unocal admitted that it was responsible for environmental damage on the property and filed a motion to refer the case to the Louisiana Department of Natural Resources (LDNR) pursuant to Act 312 of 2006, La.R.S. 30:29. Plaintiffs objected, arguing that such a referral could not take place until all Defendants admitted responsibility and the private claims were tried to the jury. The trial court agreed with Plaintiffs.

Unocal filed a motion for partial summary judgment limiting Plaintiffs’ remediation damage claims to the amount determined by LDNR to be “the most feasible plan to evaluate or remediate the environmental damage” under La.R.S. 30:29(c)(3). Unocal argued that this language served as a cap on remediation damages resulting from a tort or the implied restoration obligation of a mineral lease. The trial court agreed.Plaintiffs appealed to the Louisiana Third Circuit Court of Appeals, which issued a decision on the case on February 1, 2012.

In considering whether La.R.S. 30:29 limited Plaintiff’s recoverable remediation damages to the cost of a “feasible plan,” the appeals court first looked to the language of the statute. The court quoted the first sentence of La.R.S. 32:29(H): “This section shall not preclude an owner of land from pursuing a judicial remedy or receiving a judicial award for private claims suffered as a result of environmental damage, except as otherwise provided in this Section.” The court found that this language clearly contemplated the landowner receiving an award in addition to that provided by the feasible plan.

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In April 2006, Laurie Jenkins hired Chet Medlock to build a metal building for $25,000, payable in three equal payments. When Laurie discovered that the building was unsatisfactory and would need a number of repairs, she hired Denham Springs attorney Larry G. Starns to represent her interests in the dispute.

Later that year, Medlock sued Laurie for failure to make the last payment, and Starns neglected to file any documents in the suit on behalf of his client. Shortly thereafter, the trial court entered a judgment against Jenkins, a notice of which Jenkins received in the mail. It was not until September 2008, however, when Medlock garnished Laurie’s bank account that she knew something had gone “seriously wrong.”

Louisiana Malpractice Statute

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An employee working on the deck of a marine vessel suffered injuries to his back and hips after a crane moving equipment from the dock swung a cargo basket at him and pinned him to the ship. The employee sued the company operating the crane as well as his own employer who operated the ship he was loading.

The plaintiff-employee, Hamm, and the defendant-companies, Island Operating Company (IOC) and Rodan, disagree about what jurisdiction controls this case. The plaintiff argues that his claims fall under admiralty jurisdiction and as such elected to undertake a non-jury trial as allowed under Rule 9(h) of the Federal Rules of Civil Procedure. But the defendant companies desire a jury trial and believe that the case falls under the Outer Continental Shelf lands Act (OCSLA).

What law is applicable in this case—admiralty or OCSLA—is determinative in this case due to the different statute of limitations. If the case falls under federal maritime law then the employee has three years to file his claim, but if the case falls under OCSLA then the case will fall under the law of the adjacent state (in this case, Louisiana) and the employee had to file his claim within a year. If OCSLA is found to be the applicable law then the employee’s claim will not be valid since he filed suit fifteen months after the accident. If federal maritime law applies, then not only will Hamm be entitled to the non-jury trial he wants, but Rodan and IOC will not be able to throw the case out.

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A man died in Calcasieu Parish following an altercation with the Lake Charles Police Department. The victim, Deshotels, was chased out of a neighbor’s garage by her husband. The husband grabbed him in a chokehold, which ultimately rendered him unconscious. On their way to a burglary call in the same area, the police en route received a call from dispatch that the neighbor had apprehended Deshotels. Believing it to be the same call, they arrived at the apartment complex, expecting to deal with a burglary suspect, not a trespasser. When Deshotels attempted to run from the police officers, one of them tased him twice to stop his resistance so the others could handcuff him. The officers noted that Deshotels had turned blue and stopped breathing so they uncuffed him and called an ambulance.

His family sued the officers involved, the Lake Charles Police Department, and the Calcasieu Parish Sheriff’s Office. They brought charges for excessive force and failing to provide appropriate medical assistance against the officers involved in cowing Deshotels. Against the other officers present, they brought bystander liability claims for not preventing the tasing. The trial court granted summary judgment to the police department, dismissing the bystander liability and excessive force claims against the majority of the officers. However, the family’s claims of failure to render appropriate medical assistance and excessive force by the tasing officer are currently pending before the district court. The family appeals the dismissal of these claims.

An excessive force claim will succeed if the plaintiff can show that he suffered an injury that resulted directly and only from the use of force and that the force used was objectively unreasonable. In police situations, courts consider factors like whether the suspect posed an immediate threat to the safety of others, whether he was actively resisting arrest or trying to flee, the existence of alternative methods of arrest, the nature of the offense involved, and the risks and dangers faced by the officers. But because police officers are usually required to make split second judgments in tense situations, the court evaluates the officer’s use of force from the perspective of a reasonable officer being thrust into that scene. Since the excessive force claim against the tasing officer was denied summary judgment, the appellate court looked the other officer’s actions in subduing and handcuffing Deshotels. Were the actions reasonable under the circumstances?

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As you may know, different states have sometimes very different laws. Laws are overall somewhat similar, but small discrepancies between state laws will matter a great deal in a lawsuit. The most common example of this type of conflict occurs when an individual has been injured in one state, usually while traveling, and actually lives in another state. Whose law applies in that situation? Naturally, the states have come up with a generalized test for the court to consider.

The test is usually referred to as the “significant relationship” test. The court will determine which state has the strongest connection to the lawsuit. It will consider factors such as where the injured party lives, where the injury occurred, who caused the injury, and where the causing party lives. Where the injury actually occurred is important because witnesses and evidence will be gathered from the scene. If those witnesses and evidence have to be transferred to another state, then the trial may become a lot more time consuming and expensive for both parties. In order to maintain efficiency, the court will weigh the location of the incident heavily.

In February of this year, the Fifth Circuit Court of Appeals considered a case where choice of law was a major issue. In this case, an individual was killed as he was being transported in a helicopter to an oilrig in international waters off the coast of Louisiana for employment purposes. The helicopter hit a bird and went down, killing eight of the nine people that were in it. The crash was attributed to a product defect.

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In our prior post, we began our review of a wrongful death action that followed the tasering of Othello Pierre by two St. Martin Parish Sheriff’s deputies after he caused a disturbance at a Fourth of July party and attempted to flee the scene. We now examine the approach taken by the U.S. Court of Appeals for the Fifth Circuit in analyzing whether the deputies’ use of the taser amounted to unconstitutionally excessive force.

According to the court, an excessive force claim under the Fourth Amendment “must demonstrate (1) injury, (2) which resulted directly and only from a clearly excessive force, and (3) the excessiveness of which was clearly unreasonable.” In order for the Plaintiff to be successful in this wrongful death action, it is essential that all of these three requirements articulated by the court are met. If even one of the prongs to an excessive force claim are not met, then the Plaintiff will ultimately fail in his action.

In the case of Mr. Pierre, the court concluded that the Plaintiff’s claim “fail[ed] on the second prong” because they offered no evidence to show that Pierre’s injuries–and, by extension, his death–were the direct result of the tasing. Thus, in the court’s view, Pierre’s death did not result directly from the tasing; therefore, he did not meet all the explicit requirements for an excessive force claim. By not meeting the second requirement, the question of whether the tasering was reasonable in the first place was effectively moot.

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